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United States District Court, Southern District of New York

August 12, 2003


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


This case exemplifies the proverbial expression "Don't make a federal case out of it." A comedy of litigation errors raises the question whether this Court is now in a position to honor that bit of American folk wisdom. Plaintiffs have made, and defendant opposed, a motion to voluntarily dismiss their case without prejudice pursuant to Fed.R. Civ. P. 41(a)(2); defendant cross-moves to dismiss with prejudice; and as will be seen. a motion to remand the case to state court, made rather long ago in a court not too far away, apparently remains pending.


Plaintiff Maria Blanco brought this personal injury action in the Supreme Court of the State of New York for Rockland County, serving the summons and complaint on defendant Snyder's of Hanover, Inc., a Pennsylvania corporation, on September 6, 2002. The complaint [ Page 2]

alleged that Blanco, "while biting into a pretzel was caused to suffer severe and permanent injuries" through the negligence of the defendant in failing "to properly manufacture, warn and/or inspect the subject product." (Compl. ¶¶ 9, 10, 14.) At a conference before this Court, an attorney for plaintiffs asserted that Blanco had injured a tooth on a pretzel that was too hard. It must have been one heck of a hard pretzel: Blanco and her husband (suing for loss of consortium) demanded a total of $4,250,000 in damages.

On October 22, 2002, defendant responded by filing a petition for removal in the United States District Court for the Eastern District of New York, noting that the parties are citizens of different states and that the plaintiffs' demand for damages exceeded the jurisdictional threshold amount of $75,000. The alert New York reader familiar with federal practice will notice two anomalies: First, Rockland County is not in, nor even particularly near, the Eastern District of New York; and second, the petition was untimely, since 28 U.S.C. § 1446(b) requires that a notice of removal "shall be filed within thirty days" after defendant has been served with a complaint.

Plaintiffs apparently responded to the petition by filing, on November 8, 2002, a document styled an "Affirmation in Opposition" to the removal, pointing out the untimeliness of the removal and seeking remand or, in the alternative, transfer to the Southern District of New York, in which Rockland County actually lies. Subsequently, on December 9, 2002, plaintiffs filed a proper motion to remand the case to state court, citing again the untimeliness of the removal petition and other alleged procedural defects. Of course, unless the earlier "affirmation in opposition" to removal is deemed a motion to remand, the motion filed on December 9 was itself untimely, since a motion to remand on any ground other than lack of jurisdiction must in its [ Page 3]

turn be filed within thirty days of removal. 28 U.S.C. § 1447(c). Failure to move within that time waives non-jurisdictional defects in the removal petition. 14C Wright, Miller and Cooper, Federal Practice and Procedure, § 3739 at 454-56 (3d ed. 1998).

Defendant opposed the remand, asserting that plaintiffs' counsel had already agreed, sometime in November, to stipulate to transfer of the case to the Southern District, but had then duplicitously failed to file the stipulation and instead had filed his motion to remand. Conceding the untimeliness of its removal petition, defendant argued that its lateness in filing should be ignored because plaintiffs' counsel had "unclean hands as . . . he too has filed to follow procedure on two separate occasions making this motion untimely." Affirmation of J. Jay Young, Blanco v. Snyder's of Hanover, Inc., Dkt No. 02 Civ. 5600 (ILG) (E.D.N.Y.) (Dec. 17, 2002).

On January 3, 2003, the Eastern District (I. Leo Glasser. District Judge), no doubt glad to be quit of such bumbling maneuvers, transferred the case to this Court, noting that "[i]n light of this disposition, there is no need for this court to decide the motion to remand." Blanco, slip op. at 2 (E.D.N.Y. Jan. 3, 2003).

Following transfer, this Court held an initial conference on April 16, 2003. Expressing some skepticism about the viability of the plaintiffs' claim, the Court directed expedited and limited discovery by defendant to flesh out the allegations of the complaint, to be completed within sixty days. At the conclusion of the ordered discovery period, a second conference was held, and the Court was informed that plaintiffs had not provided the ordered discovery. A written order was then entered, directing that specific discovery be provided. In its submission in response to plaintiffs' motion to withdraw, defendant maintains that this order was not complied [ Page 4]

with, and that no discovery has yet been provided. Curiously, plaintiffs did not advise the Court at either of these conferences that a motion to remand had been made and not decided, perhaps because, contrary to this Court's individual practice rules, counsel of record for plaintiffs did not deign to appear at either conference, and plaintiffs were represented at the conferences by attorneys unfamiliar with the details of the case.

On July 1, 2003, plaintiffs moved to dismiss the action pursuant to Rule 41(a)(2). Plaintiffs' counsel affirmed that "[b]ased upon a further review of this file, including recent medical records and conversations with the injured plaintiff," he had concluded that the value of the claim "does not exceed the sum of $75,000." (Adams Aff. ¶ 7.) Defendant opposed the motion. Defendant characterized the motion as "nothing more than an attempt to remove the matter back to State Court, in order to avoid recent court ordered discovery" (Funk Aff. ¶ 2); noted that plaintiffs had not actually agreed to reduce the complaint's ad damnum below $75,000; and correctly pointed out that belated reduction of the amount claimed does not deprive the court of jurisdiction. Defendant cross-moved for dismissal with prejudice. In reply papers, plaintiffs agreed to modify the demand for damages. They argue that the case "belongs in State Court," and that it is "unfair" to require their counsel, a sole practitioner, "to appear in federal court in New York City, where [he] ha[s] never practiced." (Adams Reply Aff. ¶¶ 7-8.)


Plaintiffs' agreement in the reply papers to reduce the ad damnum amount effectively constitutes both a motion to amend the complaint and an agreement to defendants' motion to dismiss with prejudice, to the extent of any claim to damages in excess of $75,000. As all parties now agree that under no circumstances should this case result in a damage award in excess of [ Page 5]

$75,000, there is no longer any claim for any larger amount. Defendant's motion is to that extent granted, as is plaintiffs' motion to amend the complaint.

Defendant's motion to dismiss with prejudice will be denied, except to the extent noted above. Plaintiffs' blatant failure to comply with this Court's discovery orders is not to be condoned. Nevertheless, the record is inadequate to justify dismissal as a discovery sanction, and no other basis for dismissal with prejudice is suggested. While the complaint may be of dubious merit, it states a claim for relief, and plaintiffs are entitled to an opportunity to support the claim with evidence.

Plaintiffs' motion to dismiss without prejudice is also denied. The motion comes too late, since defendant has already answered, conferences have been held, and discovery has begun. Defendant has thus incurred considerable expense in defending the suit, and is entitled if it chooses to proceed to a resolution on the merits that will preclude further filings. Moreover, to the extent that plaintiffs' evident plan is to re-file the case in state court, the relief actually being sought is remand, not dismissal, and plaintiff should not be permitted to evade the requirements of federal law governing removal and remand by dismissing the case without prejudice and refiling, with a lower damage claim, in state court.

However, applying those requirements to this case, plaintiffs' earlier motion to remand the case to state court must be granted. Although this Court was made aware of this motion only indirectly, by means of arguments of the parties in connection with the motion to dismiss, Judge Glasser's order expressly failed to dispose of it, and plaintiffs' stumbling efforts to achieve the return of the case to state court by other procedural devices demonstrate that the motion has never been withdrawn or abandoned. While defendant's original opposition to the remand [ Page 6]

motion correctly noted that the formal motion was untimely, that argument is overly technical on the unusual facts of this case. Plaintiffs made known their opposition to removal, and their concededly meritorious grounds for remand, within the time limit set by § 1447(c), in the "Affirmation of Opposition." Regardless of how plaintiffs labeled that submission, it should be deemed a motion for remand. So considered, it will be granted, since the removal petition was concededly untimely, and the plaintiffs effectively moved for remand on that ground in a timely way.


Accordingly, it is hereby ORDERED that (1) plaintiffs' motion for leave to dismiss the complaint without prejudice is denied; (2) defendant's motion to dismiss the complaint with prejudice is denied, except to the extent that plaintiffs' demand for any damages in excess of $75,000 is dismissed with prejudice; (3) the complaint shall be deemed amended to reflect that damages are sought only in the amount of $75,000; and (4) the case is remanded to the Supreme Court of the State of New York for Rockland County, due to the untimeliness of the removal petition.

SO ORDERED. [ Page 1]


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